Elias v. Wynn Las Vegas LLC

• Court: District Court, D. Nevada
• Decided: February 11, 2025
• Docket: 2:23-cv-02111
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 IKE ELIAS, Case No. 2:23-cv-02111-ART-BNW

5 Plaintiff, ORDER

6 v.

7 WYNN LAS VEGAS, LLC,

8 Defendant.

9 10 Before the Court is Plaintiff’s Motion to Compel. ECF No. 52. Defendant opposed and 11 moved for attorneys’ fees it incurred in opposing the Motion. ECF No. 58. Plaintiff replied. ECF 12 No. 61. Because Defendant claimed in its Opposition that it was never served with the discovery 13 requests to which Plaintiff moved to compel responses and that Plaintiff made no effort to meet 14 and confer, id. at 1–4, the Court issued an Order to Show Cause. ECF No. 63. Plaintiff then filed 15 a Show Cause Response. ECF No. 64. 16 In its Order, the Court directed Plaintiff to provide proof of (1) service of the discovery 17 requests on Defendant, and (2) his meet-and-confer efforts with Defendant. ECF No. 63. In his 18 Response, Plaintiff submitted that he served Defendant with a copy of his Motion to Compel and 19 attached proof of the same. ECF No. 64 at 1–12. He also attached an email in which he conferred 20 with opposing counsel regarding the scheduling of a deposition. Id. at 13–14. Given Plaintiff’s 21 Response, the Court deems the Order to Show Cause satisfied. However, the Court takes this 22 opportunity to provide Plaintiff with a final warning regarding the procedures governing discovery 23 motions. 24 A. Discovery Motions 25 Before filing a discovery motion, Plaintiff must make a good faith effort to meet and confer 26 with opposing counsel. LR 26-6(c). He also must attach a declaration that sets forth the details and 27 results of the meet-and-confer efforts to the discovery motion. Id.; LR IA 1-3(f)(2). “To ‘meet and 1 motion will raise. LR IA 1-3(f). This means that Plaintiff must, in good faith, attempt to resolve 2 each and every individual discovery issue with opposing counsel before filing a discovery motion. 3 With each new motion he files, he must hold a new meet and confer with opposing counsel 4 beforehand. Thus, his email to opposing counsel in which he discussed scheduling a deposition— 5 an issue wholly unrelated to his Motion to Compel—does not count as a meet and confer. Neither 6 does Plaintiff’s participation in the Court’s hearing regarding the Scheduling Order. Plaintiff 7 needed to hold an additional meet and confer with opposing counsel to discuss the issues raised 8 by his Motion to Compel and attach a declaration describing their meeting and its results to the 9 Motion. 10 Additionally, the meet-and-confer requirement “may only be satisfied through direct 11 dialogue and discussion in a face-to-face meeting, telephone conference, or video conference. The 12 exchange of written, electronic, or voice-mail communications does not satisfy this requirement. 13 LR IA 1-3(f)(1) (emphasis added). Emails do not count as a meet and confer. Failure to abide by 14 the meet-and-confer requirements may result in the discovery motion being denied or Plaintiff 15 being sanctioned by the Court. LR IA 1-3(f)(3)–(4). 16 To bring a motion to compel a discovery response under Federal Rule of Civil 17 Procedure 37(a)(3)(B), Plaintiff must first serve Defendant with discovery requests under Rule 33 18 (interrogatories), Rule 34 (requests for production), or Rule 36 (requests for admission). Defendant 19 then will serve Plaintiff with its responses to his discovery requests. Only then, upon receipt of 20 Defendant’s responses, may Plaintiff file a motion to compel if Defendant fails to answer or 21 produce a document in response to a discovery request. FED. R. CIV. P. 37(a)(1)(3)(B)(i)–(iv); FED. 22 R. CIV. P. 36(a)(6). Plaintiff is again reminded that he must meet and confer with opposing counsel 23 regarding the discovery issues before filing a motion to compel. 24 Because Plaintiff did not (1) serve Defendant with discovery requests, (2) allow Defendant 25 to respond to his discovery requests, and (3) satisfy the meet-and-confer requirements, the Court 26 denies his Motion. The Court also points out that his Motion failed to set forth in full the text of 27 each discovery request and Defendant’s response to it as required by the Local Rules. See LR 26- 1 6(b). Failure to this requirement—along with any other applicable requirements—in the future 2 may result in denial of the motion, sanctions, or both. 3 B. Attorneys’ Fees 4 Because the Court denies Plaintiff’s Motion, it must, after giving Plaintiff an opportunity 5 to be heard, require Plaintiff to pay Defendant’s reasonable expenses incurred in opposing the 6 motion unless the motion was substantially justified or other circumstances make an award of 7 expenses unjust. FED. R. CIV. P. 37(a)(5)(B). Here, Plaintiff had an opportunity to respond in his 8 Reply, in which he stated that the Motion was not frivolous and that he did not act in bad faith. 9 ECF No. 61 at 4. But Plaintiff’s Motion is not “substantially justified,” because that means that 10 “the parties had a genuine dispute on matters on which reasonable people could differ as to the 11 appropriate outcome.” Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 609 (D. Nev. 2016). There 12 was no “genuine dispute” here because Defendant was never served with Plaintiff’s discovery 13 requests, nor did it have an opportunity to respond. 14 However, because the Court finds that other circumstances make an award of expenses 15 unjust, it declines to award attorneys’ fees at this time. Though the absence of bad faith is not a 16 consideration specifically contemplated by Rule 37(a)(5)(B), the Court notes that Plaintiff appears 17 to have filed his Motion based on a misunderstanding of the discovery process. As a result, the 18 Court provides Plaintiff with this final warning. 19 The Court reminds Plaintiff that he “is expected to abide by the rules of the court in which 20 he litigates.” Carter v. C.I.R., 784 F.2d 1006, 1008 (9th Cir.1986). His status as a pro se litigant 21 does not absolve him of the responsibility to comply with applicable rules. Bias v. Moynihan, 508 22 F.3d 1212, 1219 (9th Cir. 2007). Nor does his pro se status protect him from sanctions or attorneys’ 23 fees as a result of disobeying discovery rules. See, e.g., Garity v. Donahoe, No. 2:11-cv-01805- 24 MMD, 2014 WL 1168913, at *6 (D. Nev. Mar. 21, 2014); Barren v. Robinson, No. 2:11-cv-00650- 25 RLH-CWH, 2014 WL 12623012, at *1 (D. Nev. Apr. 24, 2014). Moving forward, Plaintiff must 26 consult the Federal Rules of Civil Procedure, the District of Nevada Local Rules, and any other 27 applicable rules, procedures, or case law before filing a motion. Further violations of rules, 1} procedures, and court orders may result in sanctions. 2) L CONCLUSION 3 IT IS THEREFORE ORDERED that the Court’s Order to Show Cause (ECF No. 63) is deemed satisfied by Plaintiff's Show Cause Response (ECF No. 64). 5 IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel (ECF No. 52) is 6| DENIED. 7 IT IS FURTHER ORDERED that Defendant’s Countermotion for Fees (ECF No. 58) is 8 | DENIED. 9 10 DATED this 11th day of February 2025. 11 12 bensocS bf BRENDA WEKSLER 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28